The Corona virus epidemic has led to massive closings of essential businesses, schools, sports arenas, and recreational facilities. Although courts may be deemed essential, they have been closed as well in Massachusetts, though they still operate on a limited, virtual basis for emergency matters. For clients and others who have family law matters pending in the court system or who may need to use the system for certain issues, what is the effect of the court closings on their cases?
For those whose divorce cases are on hold, your frustration is understandable. Many persons similarly situated simply want to get on with their lives, even if they are forced to stay at home until businesses and other services open up and they are able to return to work. Unfortunately, the reopening plan for Massachusetts does not yet include our courts where personal appearances by clients and attorneys are required or necessary for motions and hearings in most civil cases.
Accordingly, persons going through a divorce have few options other than to wait for the courts to reopen or for them figure out a way to tackle the increasing backlog of cases and without requiring all parties to personally appear. On a normal business day before the closures, courts in our state saw an average of 40,000 people streaming in and out of courthouses.
If you are only waiting for your Judgment for Divorce Nisi to issue, it will likely be issued since no further court appearances are required. But if your matter is contested, you will have to wait indefinitely for your hearing, settle, or consider seeking mediation as a way to explore compromise and settlement. A mediation is conducted by a neutral party with considerable family law knowledge. Issues and arguments can be discussed freely before the mediator who will suggest compromises and other solutions while assessing the parties’ individual positions. Nothing is binding unless the parties are able to resolve their differences and sign a Separation or Divorce Agreement and present it to the court for approval and hope that the court will issue a Judgment for Divorce. Otherwise, the parties will remain in limbo and may have to wait many months before their cases are heard. In some cases, the wait could potentially be more than one year. Still, courts are accepting new case filings, and you should file your divorce case at this time and have it served to get it on the court docket. No one really knows how the court will deal with the backlog at this time, though generally it is on a first-come, first-served basis unless there are certain matters that qualify as an emergency.
Family law cases that often require personal appearances include probate, divorce, and child custody matters but these are not necessarily emergency matters. However, if a child needs medical care but the caregiver or parent is hospitalized or incapacitated with Covid or is otherwise unavailable, a guardian needs to be appointed as soon as possible. Since the courts are allowing emergency matters to be heard by video, a probate or divorce lawyer can file a motion accompanied by a declaration explaining why the matter is an emergency and deserves immediate attention. Similarly, a domestic violence or abuse situation cannot be put on pause because the victims’ health and safety is at risk. In these circumstances, the court will hold an emergency hearing and issue the appropriate restraining or protective order.
Custody and Visitation
Custody and visitation issues present challenges at this time of lockdowns and the threat of contracting the virus. Some questions clients may have at this time may be:
- What would prevent a parent from denying visitation to another parent out of fear of infection?
- What if a parent has recently returned from an out-of-state visit or international travel and refuses to self-quarantine?
- Or a parent has recently been exposed to a person diagnosed with Covid but still demands his/her usual visitation or parenting time?
- Finally, if parents with support obligations have lost their jobs and may or may not be subsisting on unemployment, are they still required to meet their monthly child support obligations?
Violating a court order on your own is never advisable, even if you firmly believe that doing so is in your child’s best interests. Contact a family or divorce lawyer before you take any action that could expose yourself to a contempt citation for deviating from a court order.
If permitted, communicate with the other parent first if you have concerns about possible Covid infections from a visit. But if the other party is not cooperating, some questions that you and your lawyer may consider in bringing a motion to modify visitation include:
- Is the other parent in a community experiencing an outbreak or surge in infections?
- Has the other parent been diagnosed with the virus?
- Has that parent recently returned from another state with a high infection rate or from overseas?
- Was the parent recently at a rally, protest demonstration, or other gathering with a large number of people?
- What steps, if any, has the other parent taken to reduce the risk of infection, i.e., social distancing, wearing a mask, avoiding crowds and gatherings, disinfecting the home, etc.
Also, if the child has been exposed to an infected person, it may be prudent for the child to remain at home with the parent they are currently with; and especially if the child has tested positive.
Other possible scenarios where a court is more likely to issue a modification order may be:
- The other parent has tested positive for the virus whether symptomatic or not
- The parent refuses to self-quarantine after being in
alarge gatherings or has recently returned from overseas or a highly infected area
- The child has been exposed to an infected person that could lead to self-quarantine for the child and custodial parent that could restrict that parent’s movement and ability to work.
Child Support Modification
If you are out of work or receiving far less than your usual wages, you can and should file a Complaint for Modification along with a Motion for a Temporary Order seeking a reduction in support. It is highly recommended that you notify the recipient parent of your intention and show documentation to support your motion to avoid a contested motion. If your support payments are automatically deducted or handled through the Department of Revenue (DOR), then no payments will be made if you are not working, though you are still obligated to make them unless you file the motion, and arrearages will accumulate. If you file for modification seeking a reduction in your obligation, the court has the ability to grant you relief retroactively to the date of serving the Complaint for Modification.
Consult Divorce Lawyer Heather M. Ward
Even if your divorce case is on hold, are thinking of filing for divorce, or have questions about the effects of court closings on family law matters like custody and visitation, you can schedule a free consultation with attorney Heather M. Ward by calling (617) 903-8955. Ms. Ward has the experience, knowledge, and skills necessary to address any divorce or family law issue you have.